Alabama

Submitted by jcc_admin on Sat, 11/21/2015 - 20:39

Alabama Chapter

Juvenile Collateral Consequences in the State of Alabama

The Alabama Juvenile Justice Act became the controlling legal authority for juvenile delinquency proceedings in 2008. The Act’s main purpose is twofold: (1) “to facilitate the care, protection, and discipline of children who come under the jurisdiction of the juvenile court”; and (2) “to preserve the public peace and security.”[1] Pursuant to this mission, Alabama makes it difficult for the public to access arrest and court records of a juvenile. Nonetheless, persons subject to juvenile proceedings should be cognizant of the fact that the law allows certain individuals and entities to access juvenile arrest and court history. Juveniles should also be aware of the procedures designed to safeguard against the misuse of sensitive information. If information is unprotected, juvenile records may lead to adverse consequences in the future.

Understanding the Justice System

The Alabama Juvenile Court has jurisdiction over delinquency matters for individuals who are under eighteen years of age or under twenty-one years of age if the matter arose before that individual’s eighteenth birthday.[2] Unlike criminal acts, offenses adjudicated in juvenile court do not carry the same weight or meaning as a criminal conviction. Rather, these offenses are referred to as “delinquent acts,”[3] and a child who has been adjudicated for such an act is called a “delinquent child.”[4]

Classifications of Youth

Juvenile cases in Alabama may include charges that a child is “delinquent,” “dependent,” or a “child in need of supervision.”[5] A delinquent child is one who commits an offense that would be considered a crime if committed by an adult. A dependent child is a one who is orphaned, neglected, or abused and in need of care.[6] A child in need of supervision (“CHINS”) is one who commits an act that would not be classified as a crime if the child were an adult, but reflects that the child is in need of care and rehabilitation.[7] For example, a habitual truant or a runaway is a child in need of supervision.[8]

A child adjudicated delinquent for an act that would be a Class A felony, a felony resulting in serious physical injury, or a felony involving physical force, a deadly weapon, or a dangerous instrument is classified as a “serious juvenile offender.”[9] A child adjudicated a serious juvenile offender must be committed to the Department of Youth Services for a minimum of one year.[10] If a child older than sixteen commits one of the aforementioned offenses, the child is deemed a youthful offender, prosecuted as an adult, and subject to the same laws and regulations as adults.[11] Once convicted or adjudicated a youthful offender, a juvenile may not subsequently be subject to the jurisdiction of the juvenile court, and all further offenses will fall under the jurisdiction of the criminal court.[12]

All children subject to delinquency and CHINS cases are notified of the right to counsel.[13] If a child’s family is unable to afford an attorney, the juvenile court will appoint one.[14]

Notification of Collateral Consequences of Juvenile Records

Currently, no statutory authority or case law directs any member or officer of the juvenile justice system to take affirmative steps to notify children or families of the collateral consequences of any type of court proceeding, offense, or adjudication.

Treatment of Juvenile Arrest & Court Records

At what point in the court process do records begin?

Juvenile cases and proceedings before the juvenile court are initiated by a court intake officer filing a petition.[15] A petition alleging that a child is a delinquent child, dependent child, or child in need of supervision may be filed after the intake officer has determined and endorsed that the juvenile court has subject matter jurisdiction over the case and that the petition is in the best interests of the public and the child.[16] A juvenile petition may be signed by any person eighteen years of age or older who has knowledge of the facts alleged and believes them to be true; however, juvenile court intake officers are not permitted to sign these petitions.[17] After a petition has been filed, the child has an opportunity at a hearing to admit or deny the allegations; if the child admits to the allegations in the petition, the juvenile court records its findings and proceeds to determine whether the child is in need of care or rehabilitation.[18] If the child denies the allegations, the juvenile court will proceed to hear evidence on the petition.[19]

If the juvenile court finds that a child is not in need of care or rehabilitation, the case is dismissed and the child is released.[20] If the juvenile court finds that a child committed the acts alleged, the court will make an order or disposition and file the record.[21]

Can DNA, fingerprint, and identification evidence be collected?

Once a child is charged with a delinquent act and placed in custody, law enforcement officers will obtain the child’s fingerprints, retain these prints in a local file, and provide a copy to the Alabama Bureau of Investigation for filing purposes.[22] Use of the fingerprints is limited to law enforcement and staff of the depository during the investigation of the crime.[23] A child charged with a delinquent act is also photographed by law enforcement upon custody for criminal identification purposes.[24]

Blood or other samples necessary for DNA testing may be taken for criminal identification purposes if a child charged with a delinquent act that would be a Class A or B felony if committed by an adult.[25] If taken, the samples are submitted for DNA testing and filed with the Department of Forensic Sciences.[26] The use of DNA samples is limited to inspection for identification purposes by law enforcement officers and testing by the forensics facility in the investigation of a crime.[27]

Where are juvenile records stored?

Juvenile arrest records are stored in the State Criminal Justice Information System, which is maintained by the Alabama Criminal Justice Information Center.[28] Law enforcement agencies are statutorily required to take special precautions to ensure that juvenile records are treated with “safeguards that will protect against disclosure to any unauthorized person, department agency, or entity.”[29]

Similar treatment is required for records, reports, and information acquired or generated in juvenile courts; such information is confidential and not released to any unauthorized person, department, agency, or entity.[30] The information includes: (1) juvenile legal files;[31] (2) social records;[32] (3) State Criminal Justice Information System records;[33] (4) juvenile criminal sex offender notification records.[34]

Public: A youth’s law enforcement records and files are not open to public inspection, and will not be disclosed to the public.[36] An exception exists where a charge of delinquency is transferred for criminal prosecution,[37] or the juvenile court otherwise orders disclosure of the records in the interests of the child or national security.[38] If a child registers under a special offender registry (i.e. sex offender registry), the youth is subject to the rules of that registry and information may be disseminated to the public. See Special Offender Registry section, infra.

Youth and Youth’s Representatives: The youth, youth’s attorney, and parent[s], legal guardian, or guardian ad litem have access to a youth’s records.[39] However, if a mother or father’s parental rights have been terminated, that person will not have access.[40]

Victim: At the discretion of the investigating officer, a youth’s law enforcement records may be viewed by victims of the juvenile’s crime during its investigation.[41] Petitions, motions, juvenile court notices, and dispositions are also open to inspection and copying by the victim.[42]

Court Personnel and Professional Staff: A juvenile court may access the records of any child currently before it.[43] This includes the judge, juvenile probation officers, prosecutor and any professional staff assigned or contracted to serve the juvenile court.[44]

State Agencies: Law enforcement agencies, personnel from the Department of Human Resources, the Department of Youth Services, and the agency or institution to which a youth has been committed have access to a youth’s arrest and court records.[45] This includes those responsible for the youth’s supervision after release, such as a probation officer.[46] The Alabama Sentencing Commission also has access to information and records for statistical and empirical purposes.[47]

Schools: The principal of the school where a child is enrolled, or the representative of the principal, may be granted access to a child’s arrest and court records upon a written request to the juvenile court.[48] This request must set forth the reasons why the safety or welfare of the school, its students, or personnel, requires production of the information.[49] In addition, the juvenile court may, within seven days, provide the superintendant of the respective school district (or principal, if a private school) with written notice that a child enrolled in a school has been found delinquent of an act which, if committed by an adult, would be a Class A or B felony or any other crime. [50] The superintendant or principal may then disclose the information to counselors directly supervising or reporting on the behavior or progress of the child.[51] Further, the principal may disclose the information to any teacher, administrator, or other school employee directly supervising or reporting on the behavior of the child whom the principal believes needs the information in order to assist the child or to protect other students and staff.[52] Any information received by a teacher, counselor, administrator, or other school employee must remain confidential and cannot be disclosed to unauthorized persons.[53] An intentional violation of this confidentiality requirement is a Class A misdemeanor.[54]

Request to Access: A juvenile court may grant access to specific records, reports, and information to government, departments, entities or agencies or employees that would otherwise be denied access.[55] Prior to granting access, the juvenile court must determine that a legitimate need exists, and that access does not violate federal law.[56] Those seeking access to a juvenile’s records must submit to the juvenile court a written request stating: (1) the reason for the request; (2) the use to be made of the information sought; (3) and the names of the persons or entities that will have access to the information.[57]

Future use: A juvenile’s records may later be used by prosecutors to support a subsequent case against the juvenile if that individual is alleged to have committed the same or a similar offense as an adult.[58]

Sealing and Destruction of Delinquency Files or Records

Are juveniles able to seal arrest and court records? If so, what is the process?

Juveniles in Alabama have the right to request that records be sealed.[59] Sealing a record prohibits the general public from viewing and disseminating prior adjudicatory history.[60] To be eligible to make such a request, a juvenile must wait two years from the final discharge of legal custody or supervision, or two years from the entry of any other order of the juvenile court if custody or supervision were not involved.[61] Furthermore, an individual must not have been convicted or adjudicated a delinquent or youthful offender for any felony or a misdemeanor involving sexual offenses, drugs, weapons, or violence, or threats of violence, prior to a request to seal records.[62] If these conditions are satisfied, a person who has been the subject of a delinquency or CHINS petition must file a motion with the juvenile court to start the sealing process.[63] The juvenile court may then order the sealing of a juvenile’s legal and social files, along with any other records relating to the youth.[64]

Who has access to sealed juvenile court records?

On a case-by-case basis and by court order, a juvenile court may permit the inspection or release of information of a youth’s records to any clinic, hospital, or agency that has the individual under care.[65]

How may sealed records affect a juvenile in the future?

Generally, one who is successful in sealing juvenile records does not have to be concerned about such history resurfacing. If, however, the individual is subsequently adjudicated a delinquent, youthful offender, or convicted of a felony or misdemeanor involving sexual offenses, drugs, weapons, violence, or threats of violence, the sealing order is nullified and records are treated as if never sealed.[66]

Are juveniles able to destroy court and arrest records? If so, what is the process?

An individual may file a motion for the destruction of court and arrest records if, as a juvenile, the individual was the subject of a delinquency petition.[67] A person may file a motion for the destruction of juvenile adjudication records if the individual (a) has not been subsequently convicted or adjudicated delinquent or a youthful offender for a felony or misdemeanor involving sex offenses, drugs, weapons, violence, or threats of violence, (b) has no pending criminal of juvenile proceedings pending, and (c) is at least twenty-three years old.[68]

If the court grants the motion, copies of the order will be sent to all agencies, offices, and departments with the individual’s records.[69] All of these entities are then required to comply with the order and destroy the information.[70] A destruction order will remove from all entities any references to arrest, complaints, referrals, petitions, reports, and orders.[71]

Are juveniles informed of the ability to seal or expunge juvenile records?

A person who has been the subject of a delinquency petition must be notified of the subsequent right to seal and/or destroy court records at the time of final discharge.[72]

Challenging Accuracy of Arrest and Court Records

The Alabama Criminal Justice Information Center (ACJIC) maintains records on any juveniles charged with an act of delinquency.[73] An individual has the right to review personal criminal history record information (CHRI) and challenge any portion believed to be inaccurate or incomplete.[74] To review one’s criminal history, an individual must complete a form entitled “Request for Review of Criminal Records.”[75] All parts of the form, including a fully classifiable set of an applicant’s fingerprints, must be completed and an administrative fee of $25.00 must also be sent. If, upon receipt of one’s history, an applicant believes that the information contained within is inaccurate or incomplete, the applicant may challenge the information by completing the “Criminal History Record Challenge” form and returning it to ACJIC, where it will be reviewed and amended if the record is found to be incorrect.[76] These forms are available on the Alabama Criminal Justice Information Center website.[77]

Employer Access to Criminal History

Generally, employers will not have access to juvenile records unless the juvenile was tried as an adult.[78]

However, certain professions, such as those involving child care, care for those with disabilities, and elderly care, require that applicants’ criminal history information be checked against all records containing information collected and stored in the criminal record repository of the Federal Bureau of Investigation and the Alabama Department of Public Safety.[79] This includes positions contracted through the Department of Human Resources, including mentors and volunteers in positions requiring unsupervised access to children, the elderly, or persons with disabilities.[80] Such individuals are advised of these background checks by a “mandatory criminal history check notice” on applications for employment.[81] An individual may be disqualified if convicted of one of several serious crimes, including murder, kidnapping, and various sex crimes.[82] While there is no specific mention of juvenile records, such records are accessible to the Departments of Public Safety and Human Resources[83] and a juvenile convicted of such crimes may face disqualification from employment.

Collateral Consequences Affecting Education

Juvenile records in Alabama are generally shielded from the public.[84] However, this general protection does not fully extend to a juvenile’s education.[85] If a juvenile is taken into custody, charged, or adjudicated delinquent for acts that endanger the safety and welfare of a school and its students or personnel, the principal may petition for access to all of the juvenile’s records.[86] In addition, a court may, at its discretion, provide principals and superintendants of Alabama schools with written notice of a child’s adjudication for a Class A or B felony, or any other crime.[87] The principal may then disseminate this information to teachers and staff members who supervise and come in contact with adjudicated youth.[88]

Because the main priority of a school administration is the safety and welfare of its students and staff, Alabama principals have discretion as to how discipline should be conducted; discipline includes suspension and expulsion. [89] A juvenile may be suspended or expelled from school for the possession of a firearm[90] and possession of any drugs, alcohol, or other weapons.[91] The discretion to discipline students, in conjunction with notification of adjudications of delinquency, means that a student may suffer consequences of adjudication at school.

Can a juvenile be disciplined at elementary or secondary school even if records have been sealed or expunged?

Because a juvenile must wait two years from the date of discharge before requesting that juvenile records be sealed, school discipline will usually take place prior to this request.[92] Therefore, students may still be subject to disciplinary infractions at school. While expunged records mean that a juvenile’s records are destroyed, a person is only eligible to request expungement five years after the age of majority.[93] Therefore, a youth will not have the opportunity to benefit from expungement while still a student at an elementary or secondary school.

Are there collateral consequences affecting access to state higher education for a juvenile that has been adjudicated delinquent or charged with a crime?

Some applications in Alabama request information as to whether a youth was adjudicated for a Class A or B felony, or treated as an adult in the justice system. In addition, although many institutions do not directly inquire about juvenile adjudications, questions about arrests, school discipline, and/or criminal charges may lead to the disclosure of this information, since an answer in the affirmative requires explanation.

Public Institutions

University of Alabama: Applicants are asked “have you ever been convicted of, pled guilty to, or pled no contest to a felony or sexual offense? Are you currently the subject of pending charges or an indictment, or subject to arrest, for any criminal offense, including felonies or lesser offenses?” A response of “yes” requires a date and explanation of circumstances.[94]

Auburn University: Applicants are asked whether they have ever been charged, convicted of, or pled guilty or nolo contendere to a crime other than a minor traffic offense, or whether there are any criminal charges currently pending against the applicant. Responding “yes” requires applicant to provide information about the charges and the status of the charges.[95]

University of Alabama School of Law: Applicants are asked “have you ever been charged with or convicted of a crime, including misdemeanors and traffic violations, or is any such charge pending or expected to be brought against you?” Minor parking and speeding violations do not need to be disclosed. For all other offenses, an explanation is required.[96]

Private Institutions

Samford University: Applicants are asked whether they have “ever been arrested, formally accused or convicted of a crime, or pleaded guilty of a crime other than a minor traffic violation for which a fine or forfeiture of $25 or less was imposed?” If the response is “yes,” the applicant must submit a written explanation.[97]

Collateral Consequences to Receipt of Public Benefits & Privileges

Can an arrest or an adjudication of a juvenile household member lead to eviction from public housing?

In Alabama, the County Housing Authorities act as agents for the federal government “in connection with the acquisition, construction, operation, or management of a housing project or any part thereof.”[98] As such, housing in Alabama is subject to federal regulations.

Under federal guidelines, households that include a juvenile who must register as a sex offender will be banned from public housing forever.[99] Households which include a member who has been convicted, as an adult or juvenile, of manufacturing or otherwise producing methamphetamine on the premises of a federally assisted housing program will also be banned permanently from admission to public housing.[100]

Households which include a member, adult or juvenile, whom the housing provider determines is currently engaged in illegal use of a controlled substance or whom the housing provider has a reasonable belief that the household member’s pattern of illegal drug use may threaten the health safety or right to peaceful enjoyment of the premise by other residents will also be banned from public housing.[101] When considering whether to admit a household that was formerly been rejected due to a member’s illegal drug usage, the housing provider may consider the member’s rehabilitation as evidenced by completing or participating in treatment.[102]

A housing provider may exclude any household that includes a member who is currently engaging in, or has engaged in during a reasonable time before the admissions decision, any drug-related or violent criminal activity or other criminal activity which would adversely affect the health, safety, or right to peaceful enjoyment of the premises by other residents, the owner, or public housing agency employees.[103]

Can a juvenile record affect a juvenile’s driver’s license or permit?

The Department of Public Safety is the agency in Alabama that issues drivers’ licenses.[104] Applicants under the age of nineteen are required to provide proof of school enrollment, which can be satisfied by a certified letter from school, or if the applicant has already graduated, a certificate of graduation or GED certificate will suffice.[105] The Department of Public Safety will grant an exemption to the enrollment requirement if evidence is presented that there were circumstances beyond a student’s control, as defined in the statute.[106] Suspension or expulsion from school or imprisonment in a jail or penitentiary is not deemed to be a circumstance beyond a pupil’s control.[107] Therefore, if a student’s absence from school resulted from a disciplinary action, that student may not be able to obtain a driver’s license until the age of majority. [108]

Any person over the age of fourteen adjudicated delinquent or as a youthful offender for possession of a pistol on the premises of a public school, or a public school bus, or both[109] shall be denied issuance of a driver’s permit or license for 180 days from the date the person is eligible and applies for a permit or license for the operation of a motor vehicle.[110]

If a youth over the age of fourteen already has a driver’s license on the date of the adjudication or conviction, the Department of Public Safety shall send notice of driver’s license suspension within five days of receipt of a notice of conviction from the court. The suspension will last 180 days, beginning on the thirtieth day following the date the notice was sent to the youth.[111]

Upon written request, a youth will have the opportunity for a hearing to reinstate the driver’s license.[112] Moreover, if the underlying conviction is reversed within the 180 days, the license will be reinstated.[113]

Can an arrest or adjudication affect a juvenile’s right to purchase, use, or handle a firearm?

In Alabama, before issuing a license to carry a pistol, the county sheriff must contact local, state, and federal criminal history banks to determine whether possession of a firearm by an applicant would be a violation of state or federal law.[114] No person who has been convicted of committing or attempting to commit a crime of violence may own or have possession of a pistol.[115] This prohibition also applies to youthful offenders tried as adults.

Special Offender Registries

Upon adjudication of delinquency for a criminal sex offense, a youth offender is deemed a “juvenile criminal sex offender.”[116] A juvenile criminal sex offender is required to receive sex offender treatment by a licensed program, as well as submit a DNA sample to the probation officer or sheriff, which will be sent to the Department of Forensics Sciences.[117] A juvenile criminal sex offender is not allowed to leave the jurisdiction of the sentencing court without first undergoing sex offender treatment and a risk assessment.[118]

Is the community notified of juvenile criminal sex offender status?

Generally, a juvenile sex offender is not subject to community notification upon release.[119] However, the state may petition the sentencing court to apply a community notification requirement within thirty days of receiving the risk assessment.[120] Upon receiving the state’s petition, the sentencing court will conduct a hearing on the risk the juvenile poses to the community.[121] After the hearing, the court will determine whether there is a need to notify the community about the offender’s release and residency; the level of notification varies depending on whether the risk of re-offense is low, moderate, or high.[122]

Low Risk: Notification that the juvenile will be establishing residence will be provided to the principal of the juvenile’s school. The notification will include the offender’s name, actual living address, date of birth, and a statement of the sex offense for which the juvenile has been adjudicated delinquent, including the age and gender of the victim.[123] Information provided to the school is confidential, and may be disseminated only to those teachers and staff members with direct supervision over the juvenile. Violation of this confidentiality requirement is a Class A misdemeanor.[124]

Moderate Risk: Notification that the juvenile will be establishing residence shall be provided to all schools and child care facilities within three miles of the juvenile’s declared residence.[125] A community notification flyer will be delivered to these facilities by regular mail or by hand.[126] A flyer for public viewing will also be on file with the sheriff in the county of the juvenile’s residence.[127] No other method may be used to distribute this information.[128]

High Risk: If the risk of re-offense is high, the public shall receive notification as though the juvenile criminal sex offender were an adult.[129]

Can the notification decision be appealed?

Once the sentencing court makes the determination of notification, the decision is not subject to appeal.[130]

The collateral consequences of a criminal conviction—legal sanctions and restrictions imposed upon people because of their criminal record—are hard to find and harder to understand. Now it will be easier to do both. Congress directed the National Institute of Justice to collect and study collateral consequences in all U.S. jurisdictions, and NIJ selected the ABA Criminal Justice Section to perform the necessary research and analysis. The results are now being made available through this interactive tool.

The collateral consequences of a criminal conviction—legal sanctions and restrictions imposed upon people because of their criminal record—are hard to find and harder to understand. Now it will be easier to do both. Congress directed the National Institute of Justice to collect and study collateral consequences in all U.S. jurisdictions, and NIJ selected the ABA Criminal Justice Section to perform the necessary research and analysis. The results are now being made available through this interactive tool.